Johnston v. . Whitehead , 109 N.C. 207 ( 1891 )

This action was tried at June Term, 1890, of PITT. At Spring Term, 1891, of this Court, the transcript on appeal not having been brought up, the appellee filed the requisite certificate, and had the appeal dismissed under Rule 17. At this term (Fall, 1891), the appellant moved to reinstate, and as cause therefor files an agreement of counsel made in September, 1890; that time till 31 January, 1891, should be allowed the appellant "to perfect case on appeal," and also urges that the motion to dismiss was made without notice.

The agreement to give time, till 31 January, 1891, to perfect appeal would have been ground to resist a motion to dismiss, if made at Fall Term, 1890, when the appeal should in due course have been docketed, but was no excuse for the transcript not being on file when the district to which it belongs was called at Spring Term, 1891, or for a certiorari not being applied for if the appellant was in no default. Pittman v.Kimberly, 92 N.C. 562. Besides, if the appeal was improperly dismissed, the motion to reinstate by the rule (17) should have been made "during the term" at which it was dismissed, and, if granted, the cause would have stood for argument at this term. To permit the cause to be reinstated now is not only not authorized by the rules, but contrary to the rights of the appellee, as it would put off the arguments and decision of the appeal till Spring Term, 1892, which regularly should have stood for argument at Fall Term, 1890, and that, too, when, by appellant's own showing, the agreement for delay only postponed the hearing till Spring Term, 1891. If the case on appeal was lost or mislaid, the remedy of appellant was by a certiorari at the first term of this Court. (209) Pittman v. Kimberly, supra; Bailey v. Brown, 105 N.C. 127; Porter v. R. R., 106 N.C. 478; Mitchell v. Tedder,108 N.C. 266.

The objection that the motion to dismiss was granted without notice is without force. Notice of such motion is not required.

Appellants are too often prone to forget that appellees have rights. The "law's delay" is assigned by Hamlet as one of the great evils of life, and the barons at Runnymede thought it so great a one that they exacted the insertion of a guarantee against it in Magna Charta — a guarantee which has been copied into the Constitution probably of every American State, and which is to be found in section 35 of our own Declaration of Rights. This guarantee, so notably won, so carefully retained for so many centuries, and still incorporated in our organic law, that "justice shall be a administered without delay," is not a mere rhetorical flourish. It is a constitutional right. The party who seeks delay must show good cause why the other party should be subjected to it, and the burden is on him to show that he himself is without laches. The appellant has shown no cause why the appeal was not docketed here, or a certiorari applied for, at the Spring Term, 1891, and none why this motion to reinstate, if there had been ground for it, was not made "during the term" at which the appeal was dismissed.

Motion denied.

Cited: Pipkin v. Green, 110 N.C. 462; Calvert v. Carstarphen,133 N.C. 26; Howard v. Speight, 180 N.C. 654.